Abebe v. Mukasey

• Decision Date: 05 January 2009
• Docket Number: No. 05-76201.,05-76201.
• Citation: 554 F.3d 1203
• Parties: Yewhalashet ABEBE, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

554 F.3d 1203

Yewhalashet ABEBE, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 05-76201.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 25, 2008.

Filed January 5, 2009.

Robert B. Jobe (argued) and Fatma Marouf, Law Office of Robert B. Jobe, San Francisco, CA, for the petitioner.

Zachary Miller Nightingale, Avantika Shastri, and Marc Van Der Hout, Van Der Hout, Brigagliano and Nightingale, LLP, San Francisco, CA, for amicus curiae, the National Immigration Project of the National Lawyers Guild.

Marc Christopher Fleming and James Quarles, Wilmer Cutler Pickering Hale & Dorr, LLP, Boston, MA, for amicus curia, Joel Judulang.

Thomas H. Dupree, Jr., Deputy Assistant Attorney General; Peter D. Keisler, Assistant Attorney General; M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration Litigation; Song E. Park, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A26-810-941.

Before ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, ANDREW J. KLEINFELD, SIDNEY R. THOMAS, BARRY G. SILVERMAN, RONALD M. GOULD, RICHARD C. TALLMAN, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, CARLOS T. BEA and N. RANDY SMITH, Circuit Judges.

Per Curiam Opinion; Concurrence by Judge CLIFTON; Dissent by Judge THOMAS.

ORDER

The per curiam opinion that was filed November 20, 2008, was filed in error. The opinion accompanying this order is substituted as the opinion of the court. The previously filed concurrence and dissent are unaffected by this order.

The petition for rehearing remains pending. Within 14 days, respondent shall file a response to the petition. Petitioner may reply within 14 days of the response; the reply shall not exceed the length permitted for the response. See 9th Cir. R. 40-1.

OPINION

PER CURIAM:

1. Petitioner became a lawful permanent resident in 1984 and, in 1992, pled guilty to lewd and lascivious conduct upon a child. Cal.Penal Code § 288(a). INS commenced removal proceedings on the ground that he was deportable as having committed an "aggravated felony," 8 U.S.C. § 1227(a)(2)(A)(iii)—"sexual abuse of a minor," id. § 1101(a)(43)(A). The Immigration Judge (IJ) denied petitioner's asylum, withholding of removal and Convention Against Torture claims, and found petitioner ineligible for a discretionary waiver of deportation under former Immigration and Nationality Act § 212(c), 8 U.S.C. § 1182(c) (repealed 1996).¹ On appeal to the Board of Immigration Appeals (BIA), petitioner argued that he's eligible for section 212(c) relief. The BIA affirmed, and Abebe petitions for review.

2. Petitioner argues that, by finding him ineligible for section 212(c) relief, the BIA denied him equal protection. Relying on Komarenko v. INS, 35 F.3d 432, 434-35 (9th Cir.1994), the three-judge panel held that petitioner isn't eligible for section 212(c) relief. Abebe v. Gonzales, 493 F.3d 1092, 1104-05 (9th Cir.2007), vacated, 514 F.3d 909 (9th Cir.2008). Under Komarenko, 35 F.3d at 434-35, a deportable alien can be eligible for section 212(c) relief only if his grounds for deportation are substantially identical to a ground for inadmissibility.² Here, petitioner is deportable for committing an "aggravated felony," 8 U.S.C. § 1227(a)(2)(A)(iii), which the panel held isn't substantially identical to the most analogous ground for inadmissibility—committing a "crime involving moral turpitude," id. § 1182(a)(2)(A)(i)(I). Abebe, 493 F.3d at 1104-05. Petitioner claims that the rationale of Komarenko can't be squared with that of Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir. 1981). He therefore asks us to overrule Komarenko, and hold that a deportable alien can only be eligible for section 212(c) relief if his conviction is substantially identical to a ground for inadmissibility. See Abebe, 493 F.3d at 1106 (Berzon, J., concurring).

Under its plain language, section 212(c) gives the Attorney General discretion to grant lawful permanent residents relief only from inadmissibility³—not deportation. See 8 U.S.C. § 1182(c) (repealed 1996). Tapia-Acuna, though, followed Francis v. INS, 532 F.2d 268, 273 (2d Cir.1976), and held that equal protection required us to extend section 212(c) relief to aliens facing deportation—if such aliens would have been eligible for section 212(c) relief from inadmissibility, had they left the United States and attempted to reenter. Tapia-Acuna, 640 F.2d at 225. In following Francis, Tapia-Acuna reasoned that there is no rational basis for granting additional immigration relief to aliens who temporarily leave the United States and try to reenter (i.e., aliens facing inadmissibility), and not to aliens who remain in the United States (i.e., aliens facing deportation). Tapia-Acuna, 640 F.2d at 225. According to Francis and Tapia-Acuna, it is wholly irrational for Congress to give any advantage to aliens outside the United States that it denies to similarly situated aliens within the United States.

We are not convinced that Francis and Tapia-Acuna accorded sufficient deference to this complex legislative scheme, and therefore reconsider this question, as we are authorized to do en banc. We note at the outset that the statute doesn't discriminate against a discrete and insular minority or trench on any fundamental rights, and therefore we apply a standard of bare rationality. United States v. Barajas-Guillen, 632 F.2d 749, 752 (9th Cir. 1980) (quoting Alvarez v. Dist. Dir. of the U.S. INS, 539 F.2d 1220, 1224 (9th Cir. 1976)). Congress has particularly broad and sweeping powers when it comes to immigration, and is therefore entitled to an additional measure of deference when it legislates as to admission, exclusion, removal, naturalization or other matters pertaining to aliens. See Kleindienst v. Mandel, 408 U.S. 753, 769-70, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Boutilier v. INS, 387 U.S. 118, 123-24, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967); Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Our task, therefore, is to determine, not whether the statutory scheme makes sense to us, but whether we can conceive of a rational reason Congress may have had in adopting it.⁴

We can: Congress could have limited section 212(c) relief to aliens seeking to enter the country from abroad in order to "create[] an incentive for deportable aliens to leave the country." Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 309 (5th Cir.1999) (quoting LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir.1998)); see DeSousa v. Reno, 190 F.3d 175, 185 (3d Cir. 1999). A deportable alien who wishes to obtain section 212(c) relief will know that he can't obtain such relief so long as he remains in the United States; if he departs the United States, however, he could become eligible for such relief. By encouraging such self-deportation, the government could save resources it would otherwise devote to arresting and deporting these aliens. See Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1153 (10th Cir. 1999), abrogated in part by INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Saving scarce resources that would otherwise be paid for by taxpayers is certainly a legitimate congressional objective.

Our dissenting colleagues argue that the reason we attribute to Congress is not so rational after all because aliens who are "excludable yet potentially eligible for a section 212(c) waiver ... [are] generally allowed to enter and to apply for waiver from within the country," and so the government will wind up having to deport those aliens anyway, if they are denied 212(c) relief. Dissent at 235. But the fact that the government may choose, as a matter of grace, to admit aliens who seem very likely to be granted 212(c) relief does not mean that it won't exclude those it believes are less likely to obtain such relief. The rationality of the statute lies in giving that discretion, on a case by case basis, to an agency that can assess the likelihood of the alien's success and the cost of his removal.⁵

The dissent makes a similar error when it argues that it is inconsistent with the statutory scheme to assume "that a rational Congress would want these persons to leave the country." Dissent at 235. The supposed irrationality here, as we understand it, would be in having people leave the country only to be re-admitted after they are granted relief.

The dissent overlooks the fact that not all those who apply for relief ultimately receive it; many, perhaps most, will not. And as to those, it makes perfect sense to want them to be outside our borders when they get the bad news. At that point, they cannot rely on inertia to remain in the country despite the adverse decision, and force the government to chase them down and pay for their deportation. As Judge Posner noted in LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998), "[t]o induce their voluntary departure, a little carrot is dangled before them, consisting of the opportunity to seek a waiver should they seek to return to the country and by doing so trigger exclusion proceedings." To what extent this will actually save the government resources is something we won't know until we try it, but it is hardly irrational to presume that a significant number of aliens may decide to depart in order to get a shot at 212(c) relief. Congress certainly is entitled to experiment, without interference from the judiciary.⁶ For much the same reason, the dissent is mistaken in arguing that we've undermined the validity of 8 C.F.R. § 1212.3(f)(5) under the rationale of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Dissent at 236. The INS may certainly choose to treat different classes of aliens the same, even though the statute does not, and nothing in St. Cyr prevents it from doing so. Of course, our ruling might cause the government to reconsider the regulation, and eventually repeal it as no...